Experienced

Fit and Proper: An Unnecessary Fight

When a moment in time presents an opportunity for a historian to leave foot prints in the sand, you expect him to seize the moment. The rejection of the list of nominees for Chairman of Guyana’s Elections Commission (GECOM), presented such an opportunity to President David Granger and he demurred. Mr. Granger traded a legacy-making moment for lasting controversy. It boils down to three simple words “fit and proper” and the clause “not unacceptable to the President“, contained in Article 161 of Guyan’s Constitution.

Vivian M Williams outside a New York Courthouse

In rejecting what is being referred to as former President Jagdeo’s obnoxious list of nominees, Mr. Granger could have simply outlined his objections in terms of the acceptability of the list to him. In a previous article, Dancing on Black Ice, I explained that the acceptability clause is a subjective veto power vested in the President. This is the apex of his authority. Mr. Granger could have pellucidly establish rational principles in a subjective sphere. Indeed, it is the first time that an entire list was rejected.

The President has the authority to reject the List and he acted within his authority in doing so. However, all of the objections raised, such as qualification, experience, partiality and partisan posturing, are grounds for rejection that fall within the subjective realm of acceptability to the President. So the President could assert that he finds the List unacceptable because of any of the reasons given. That is NOT the route the President took. Instead, he asserts that the nominees are not fit and proper and attempted to define fit and proper.

Defining fit and proper could be put to an objective test that is murky and contentious. Therefore, it presents what is known in law as a hard question. Mr. Granger, the feisty General he is, stepped down from the apex of his authority into the murky swamp of political controversy to fight an unnecessary battle with his political foe. Controversy flared because the administration is ignoring a basic principle of law and life -if a dispute could be resolved by answering an easy question, resolve the dispute and leave the hard questions for another day when it is necessary.

Because of political sensitivity, the appointment of a Chairman of GECOM is not merely a legal matter. It is a matter for which prosecution in the court of public opinion is more important than prosecution in a court of law. Former President Jagdeo knows this. He is using the brouhaha to reinforce the anchors of partisanship that have defined the nation’s politics for all its life.

Mr. Jagdeo’s party left as a footnote in history, the narrative that Mr. Granger’s party has never won a free and fair election. Now he is using a fumble by Mr. Granger to amplify that narrative and set up a future play.

Interpreting “Fit and Proper”

The proposition that the “fit and proper” list criteria requires nominees with judicial experience, turn on the application of an obscure legal principle known as ejusdem generis. In some and substance, the President argues that references to judges that come before and after the fit and proper requirement, define that criteria. This reliance on the ejusdem generis principle is misplaced.

Ejusdem generis is a cannon of legal construction that states, where general words follow the enumeration of particular classes of persons or things, general words will be construed as applicable only to persons or things of same general nature or class as those enumerated.

Legal analysis that look merely to the definition of a legal cannon for its applicability, is elementary. Proper legal analysis requires an assessment of the requirements that trigger the application of a legal principle. Here are the five conditions that must exist concurrently for ejusdem to be triggered:

(i) an enumeration of specific words;

(ii) the subjects of the enumeration constitute a class or category;

(iii) the class or category is not exhausted by the enumeration;

(iv) the general term follows the enumeration; and

(v) there is no indication of a different legislative intent.

The most significant of the five ingredients of ejusdem is the non existence of a contrary legislative intent. That requirement along with the ingredient of a non-exhaustive class or category are missing from Article 161(2) of the Guyana Constitution. The class enumerated is in fact exhausted. Take a close look at the law and you would see that where it talks about judges, the class of eligible people is finite. The ejusdem generis principle is only applied where there is an incomplete enumeration so that the general words that follow is part of a continuum. That is not the case in Article 161.

The law is well settled in various jurisdictions that the use of words such as “or” and “other” reflect an intention to enlarge the category of persons or things to choose from, not confine it. The combination of the words “or” and “any other” in Article 161(2) is a manifest intent to enlarge the class of persons to choose from NOT restrict it.

Fit and proper is always used in the context of the role you are being considered for. In this case, that role is Chairman of the Elections Commission. If the drafters of the Constitution wanted to enumerate those qualities, they would have done so, not through deductive reasoning. The argument you are hearing is an attempt to use deductive logic to enumerate qualities the framers of the Constitution did not attempt to enumerate.

Just think about it for a while. The skill sets required for the task of Chairman of GECOM may evolve with time and society. The enumeration of such skill sets in a finite manner may be counter productive for future generations. This must be one of the reasons why the drafters of the Constitution did no such thing. It should be clear that the President might have prudently and rightly rejected the List of nominees. However, the issue is not the “what” it is the “how”.

Fit and Proper has Historical Context

Why would a historian interpret a constitutional provision, rich in history, by ignoring its historical origin and moorings? The intent and spirit of the “fitandproper” requirement are embodied in its history not a fuzzy linguistic tool.

Prior to 1991 the President unilaterally appointed a Chairman of GECOM but was constrained to appoint a jurist or someone qualified to serve as a jurist. This arrangement was considered ineffective and controversial and was suspended in 1991 to allow for a list of fit and proper nominees submitted by the Minority Leader. Legislative intent for the 1995 amendment is rich and plenty.

The “fit and proper” list criteria was crafted as a curative measure for a provision that was deemed ineffective. It is a new specie not a clone of what came before it. For three decades after its adoption, the List criteria was interpreted and applied as an enlargement of the class of persons to choose from. Now, here comes an interpreter three decades later, suggesting that those who were in the thick of things, with hammer and chisel in hand, carving this piece of law, really didn’t know what they intended. To rely on ejusdem generis now is to reach back in time and attach a provision of the Constitution to a past it broke from.

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